Standing Committee D

[Mr. Mike Weir in the Chair]

Clause 32

Ancillary powers

David Maclean: I beg to move amendment No. 52, in page 18, line 13, at end insert—
‘( ) In exercising its powers under subsection (1) the association may appoint agents to act on its behalf and such agents may include voluntary commons associations which are members of the statutory body.'.

Michael Weir: With this it will be convenient to discuss the following amendments:
No. 62, in clause 32, page 18, line 15, at end insert
‘including agreements with commons associations, or with such persons as the council considers to represent the interests of persons exercising rights of common over the land.'.
No. 74, in clause 32, page 18, line 18, leave out paragraph (d).
No. 102, in clause 32, page 18, line 18, at end insert—
‘( ) make arrangements for the resolution of disputes;'.
No. 53, in clause 32, page 18, line 19, at end insert—
‘(f) appoint tribunals for the resolution of disputes.'.
No. 103, in clause 32, page 18, line 19, at end insert—
‘(f) establish tribunals.'.
No. 75, in clause 32, page 18, line 25, at end add—
‘( ) The powers of a commons association to acquire land as specified in subsection (2)(d) includes a power to cause its registration as common land or as a town or village green'.
No. 91, in clause 32, page 18, line 25, at end add—
‘( ) The powers of a commons association to dispose of land as specified in subsection (2)(d) shall be subject to provisions of section 16 (Deregistration and exchange: applications) as if the association is the owner of the land.'.

David Maclean: The amendment, tabled in the name of my hon. Friend the Member for South-East Cambridgeshire (Mr. Paice), is a straightforward probing amendment that seeks information from the Minister on whether, in exercising its powers under clause 32, a statutory commons association could appoint agents—people to act on its behalf—that could include a voluntary commons association. The Minister may say that that is taken as read and is already in the clause, or is somewhere else in the Act, but I just want an assurance that it is not precluded by the Act, and that it would be legitimate for a voluntary commons association to be an official agent—paid, if necessary—of the new statutory commons committee.

Roger Williams: I am sure that it will be a great pleasure to serve under your chairmanship, Mr. Weir. I understand that it may be the first time that you have chaired a Standing Committee, and I am sure that you will find that we all behave in the best possible way. My party intends to support the Bill—the Minister has the privilege of steering it through and he has all-party support. However, it is our intention to improve it as muchas possible, because this is a once in a lifetime opportunity, and that is why we have tabled amendments.
Amendment No. 62—in the name of the hon. Member for South-East Cambridgeshire and myself—is similar to amendment No. 52. The Minister already indicated his anticipation that, whenthe statutory bodies representing commons are established, they may not be set up in relation to a single common but instead for a group of commons. In covering a range of commons, voluntary associations will still exist, and will still have purpose and function, bringing knowledge of local issues to the fore.
The amendment is therefore a probing amendment, as the right hon. Member for Penrith and The Border (David Maclean) said, and I hope that the Minister will say that what it proposes is how things should indeed work, and that the statutory association can act on behalf of the voluntary association in establishing agreements, including environmental agreements that will bring resources to commons, in order that commons achieve their agricultural and public purposes.
Amendment No. 102 proposes making arrangements for dispute resolution, and there is a further amendment that is intended to establish tribunals. On reflection—it is not just the Minister’s prerogative to reflect—our amendment No. 53 isbetter than amendment No. 103. Much of the implementation will be done by means of regulation, and I hope that statutory bodies will be given the power to resolve disputes, because if commons associations are to be more active in commons management, from time to time there will bedisputes about management, about implementation of agreements, and about the role of individual commoners. What we do not want is a costly system of court applications for every dispute, so we want the Bill to include a means for establishing dispute resolution procedures.
The amendments are small ones, but will be of great import when the statutory bodies are set up. We would like the Minister to consider them, and in his wisdom, agree to them in due course.

James Paice: May I apologise for my delay of a second or two in arriving, Mr. Weir? I thank my right hon. Friend the Member for Penrith and The Border for his words. As he rightly said, amendment No. 52 is designed to ensure that the statutory associations, or whatever we end up calling them, can appoint voluntary associations to act on their behalf—in other words, act as agents.
The idea will not be completely new to the Minister, as it has been discussed with his officials. It came from the National Farmers Union and the National Sheep Association; they, obviously, are involved in many of the voluntary associations and are anxious that it should be possible to make such appointments. If the Minister said that the amendment was not necessary and that such powers were implicit and did not have to be in the Bill, that would be acceptable, but there would be no harm in putting them in the Bill. Nothing would be lost and some things would be gained by making it clear that an association “may” appoint agents to act on its behalf.
Amendment No. 62, which I tabled and to whichthe hon. Member for Brecon and Radnorshire(Mr. Williams) added his name, is very similar, apart from the obvious point that it relates to a different part of the clause. It goes slightly wider than appointing agents; it is about enabling other sorts of agreement to be made with commons associations. Such agreements might not be purely agency arrangements. They might be about different things, perhaps in respect of the points that we have discussed several times—conservation or stewardship agreements with Natural England, for example. The statutory and voluntary bodies may well need to enter into such agreements. It is important that there should be a power in the Bill for the statutory body to make agreements
“with commons associations, or with such persons as the council considers to represent the interests of persons exercising rights of common”.
The hon. Member for Brecon and Radnorshire kindly said that he thought that amendment No. 53 was better than his own—although he referred to it as “our” amendment, and it is mine. Never mind; he is very generous. The amendment would mean that tribunals would be appointed for the resolution of disputes. We touched on that on Tuesday in talking about the end of the commons commissioners. Although the amendment is about a slightly different aspect of the issue, it is still about resolving disputes over rights on the commons for which the statutory body will be responsible.
As the hon. Member for Brecon and Radnorshire said, we do not want to resort to the courts, although under the Bill as it is now drafted it seems that the only way of resolving disputes would be through them. Nobody thinks that a satisfactory situation, so we propose that a commons association should have the power to appoint tribunals to resolve disputes relating to their powers, although not disputes that relate to things beyond their functions.
The amendments are straightforward, but important for ensuring that statutory bodies operate according to our cross-party belief—that they should operate in the best interests of the commons and those who use them. We are anxious that the system should work, and the amendments would help it to work; that is why I tabled them.

Elfyn Llwyd: It is an unrivalled privilege and pleasure to serve under your wise and able chairmanship, Mr. Weir. That is enough flattery for one morning, but it might ensure that I get called later in the proceedings—who knows?
I support amendments Nos. 52 and 62, as they are sensible. They may be of a probing nature, but it is important that the Minister should have an opportunity to explain whether the powers would be available in the circumstances.
On amendment No. 62, voluntary commons associations have done an excellent job in many areas throughout the United Kingdom and nobody would wish to see them disappear. Their expertise is there, it should be used and if it is to be used on an agency basis, all well and good and I think that the Minister takes the point. He understands and said on Tuesday that he accepts they do a good job. We need to ensure, on a belt-and-braces principle, that we see whether it is possible to bring them in on an agency basis.
I wish to speak briefly to amendments Nos. 102, 53 and 103 and discuss the whole idea of establishing tribunals. The Minister may say that that exists somewhere within the Bill. I have not found it, nor has the hon. Member for South-East Cambridgeshire. I do not think that any of us have found it yet. If it does exist, all well and good. The Minister can then say on the record that it does exist. If it does not, it is a problem.
On Tuesday we touched on the idea of rectifying mistakes. Unfortunately, I am still unhappy about that because there are still many mistakes under the Commons Registration Act 1965, which are with us today and cause great aggravation—for example, when a person has wrongly registered far too many rights, ultimately causing over-grazing, and friction in the commoners association.
I am not saying that the Bill will give rise to disputes. However, the truth is that we are dealing with competing interests. On Tuesday we referred to the balance between the commoners, the owners and others who use the common for recreational purposes. It is important that some mechanism is provided for the simple resolution of disputes without recourse to the courts. That is not really a viable option because of the time it takes and the cost.
We can legislate for dispute resolutions in an alternative manner, which I think would be preferred. The amendments are good and need to be debated.

Jim Knight: I cannot put more eloquently than the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd) the pleasure that I have in serving under your astute chairmanship, Mr. Weir. I now beg your indulgence by asking whether I can briefly dwell on clause 27(5)(b) on which the Committee divided last Tuesday, when we met previously.
I am grateful to my hon. Friends who supported my principal argument about flexibility. I have reflected on the cause for the Division about the wording of clause 39, which we will be debating later. It would be possible for me to amend the clause to resolve the issue, but having thought clearly about our debate, I thought that it would be helpful to table an amendment on Report to amend clause 27(5)(b) along the lines of that which we discussed on Tuesday, so that we can pay greater regard to active commoners when deciding whether to set up a commons association.

James Paice: I am grateful to the Minister for giving way and I am even more grateful for his generous words. It shows that we can lose a vote and still win, which is a novel achievement. I was fairly hard in my response to his argument on that occasion. After serving with him on a number of Committees, I have come to expect his sensible, serious and analytical approach. I am pleased that he has taken the mature approach of looking back at what took place and has realised that there was some sense in what we said.

Jim Knight: I thank the hon. Gentleman for that. At one point in Committee on Tuesday, I described myself as a flexible friend and I want to continue to be one. I shall now address the matter in hand and will start by saying a few words about clause 32 as a whole. It provides for an association with wide ancillary powers so that it can carry out its functions in the most effective manner. Subsection (2) provides some examples of the activities that fall within the remit of the wide power, but it is not exhaustive in respect of the possible uses of that wide power. It is informed by subsection (1) under which an association
“has the power to do anything”.
We should be mindful of that when considering the amendments.
I am pleased to tell the right hon. Member for Penrith and The Border that, as he anticipated, amendments Nos. 52 and 62 are unnecessary because commons associations already have such powers. There is the broad power that allows a commons association to do anything that it considers will facilitate, or is conducive or incidental to the carrying out of its functions. An association can already appoint agents to act on its behalf and enter into agreements. The ancillary powers may well include appointing an agent such as a voluntary commoners association to carry out various tasks on its behalf or enter into an agreement with representatives of such an association. I hope that I have given the reassurance that the Committee wanted.
Amendments Nos. 53, 102 and 103 are unnecessary because such powers are already available toassociations. The Bill enables them to appoint a non-statutory tribunal or to undertake dispute resolution procedures, if that would assist them in their functions. As the hon. Member for South-East Cambridgeshire said, that power is limited to activities within the scope of the functions that may be given to the association. A dispute resolution tribunal established by a commons association would therefore not be able to deal with disputes concerning, for example, the registration of land or rights or issues concerning access or recreation. It would be inappropriate for it to have a formal role in resolving issues outside its remit.

Elfyn Llwyd: As usual, the Minister is being helpful to the Committee. In what way will the decision of the tribunal be binding on those before it?

Jim Knight: As we have discussed, each association is set up with its own order, at which time I hope that dispute resolution procedures would be agreed. They could be updated if necessary. If I need to give the hon. Gentleman more information, I shall write to him and other members of the Committee unless inspiration comes to me in the meantime.

Roger Williams: The hon. Member for Meirionnydd Nant Conwy made a good point because the statutory body representing commons could enter into an agreement with the Department for Environment, Food and Rural Affairs, Natural England and the National Assembly for Wales about the management of the common. If one commoner failed to comply with the management agreement, that would put in jeopardy the benefits that would flow to the commoners and the common itself. Such matters are not trivial; they are important.

Jim Knight: Yes. The next clause that we shall be discussing focuses on the enforcement of rules, which will have some bearing on the hon. Gentleman’s point. As I said, I may write to him or inspiration may suddenly arrive.

Elfyn Llwyd: While the Minister refreshes his memory, I have in my hand the fabled draft statutory instruments that we were to see today.

Daniel Rogerson: You found them, then?

Elfyn Llwyd: Yes, the documents were under my bed. Unless I am mistaken, I can find no reference in them to a dispute resolution, which is an important issue. I urge the Minister to ensure that there is a mechanism within the statutory instruments for dispute resolution.

Jim Knight: The debate is useful, because it may inform us when we draft the rules. The rules could provide a requirement to comply with the decision of a tribunal. Obviously, the extent to which the tribunal will have authority would have to be defined, and it will depend on the nature of the dispute, but it has been useful to flush that issue out, and to find out whether we would need to put something in the rules, which will come through by order.
My hon. Friend the Member for Stroud (Mr. Drew) is not here—[Interruption.] Oh, he is here now. Very good. Well, I will look forward to hearing his wise words on the other amendments.

David Drew: I apologise for my lateness, but alarm clocks work only occasionally. I am delighted to serve under your chairmanship, Mr. Weir.
My amendments are purely probing amendments. I caught the latter part of what the Minister was saying about the other amendments. My amendments are simply intended to clarify the situation as regards the acquisition or disposition of land. That should be allowed to happen in a way that does not fetter any other arrangements. The amendments are really about getting further amplification on what the Government intend to do if a dispute occurs. How can it be settled amicably, rather than being fought through the courts? Will the Minister explain exactly what the Government have in mind?
The rules will be made through secondary legislation, but will there be a code of practice of some description to explain to commons associations—or committees, as we are to call them—how to go about acquiring additional land? Or they may wish to sell a piece of land when they need to raise money—hopefully, as we said on Tuesday, to replace like for like. We would certainly like to know more about that.

Jim Knight: All three amendments from my hon. Friend are linked to the power of a commons association to acquire or dispose of land, as we have heard. I am grateful to him, because his amendments allow me to get certain matters on the record in respect of those issues.
The power to acquire or dispose of land is one of the illustrative powers that a commons association might use to help it achieve its purpose. We do not expect that a commons association will engage in the buying and selling of land on a regular basis, but there may be instances when it wants to make use of that power. For example, if a small piece of the common was to be sold off, the association might want to buy that land to ensure that it did not fall into what it would regard as the wrong hands, or an association might want to dispose of any land that it had acquired in order to raise funds. The land in question may not necessarily be just common land—it could be a lease on an office, for example. We need to ensure that commons associations have sufficient flexibility to carry out their functions in the way best suited to their circumstances.
Amendment No. 75 is unnecessary because a commons association, like any landowner, can create new common land under common law by simply creating rights of common over that land. It can also voluntarily apply for the registration of the land as a town or village green under clause 15, without having to show 20 years’ use. If an association were to sell common land that it had acquired, the land would remain registered common land, as is the case with any landowner selling common land. The exchange provisions in clause 16 apply to any landowner seeking an order for the exchange of land, so there is no need for a special reference to commons associations as is suggested in amendment No. 91.
My hon. Friend asked about a code of practice on how to acquire additional land. We will be working with Natural England and the Countryside Council for Wales to provide advice to commons associations on their activities and functions. We would not expect to give detailed advice on commercial matters such as land purchases; that is not for Government. However, we will seek to provide useful guidance. I hope that that helps my hon. Friend.

James Paice: I am grateful to the Minister for his responses to the amendments in my name, and to those in my name and that of the hon. Member for Brecon and Radnorshire. I fully understand the Minister’s comment that they are unnecessary, inasmuch as clause 32(1) provides such wide powers that it covers all the other things. It is difficult to refute that, and I appreciate that the Government are loth to start adding examples to the Bill. Nevertheless, it is important that those points have been raised andthat he has made it absolutely clear that agencies, agreements with other organisations and dispute resolution are properly covered.
Although I listened carefully to the Minister, I am slightly concerned. I suspect that every Member now has a copy of the sample “Commons Associations (Standard Constitution) (England) Regulations 2006” and “West Barsetshire Commons Association Establishment Order 2006”, but nothing in either of them refers to how the associations will carry out their business. The west Barsetshire sample refers to the functions of the establishment, the application of the standard constitution, the functions of the association and the rule-making procedure—how the register will be maintained and members appointed—but nowhere does it explain how the association will carry out its functions. That is why clause 32 is terribly important.
Although I appreciate the Minister’s statement that our debate informs the drafting of those rules, it is important that the issues that we have discussed such as agencies, agreements, dispute resolution and tribunals are clearly put into the constitutions so that there can be no doubt that the associations have those powers and are expected to use them to resolve disputes. People need clarity. The purpose of the amendments was to improve association delivery.

Jim Knight: I shall just add further clarification on disputes. The findings of the tribunal that the association will have the power to set up will be binding if they relate to the enforcement of rules set by the association, such as commoners’ compliance with grazing reductions, but they will not be binding on issues outside the association’s remit. I hope that that is helpful.

James Paice: It is helpful, and it is what most of us understood. I am grateful to the Minister for his clarification. This short debate has been useful. On the understanding that the new draft rules will include those points, so that they are clear to everybody, I shall invite my right hon. Friend the Member for Penrith and The Border to undo the damage that he did in the beginning.

David Maclean: I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Roger Williams: I rise to make one short point about clause 32. On Second Reading, I asked the Minister a question about the European convention on human rights. If a statutory association enters into an agreement on behalf of its members—we have considered the proposed standard constitution order— representation from the graziers will not be measured in large numbers of people. A small number of people will be making decisions on behalf of a large number of people. One issue was that as part of that agreement, people would have to reduce the number of animals that they graze on the common, effectively reducing their rights. How does that stand in terms of people being able to enjoy their property? We are talking about a statutory body taking a decision on behalf of individuals whose right to enjoy their property is protected under the European convention on human rights. Has the Minister considered that issue? Will he share his thoughts with us?

Jim Knight: I am delighted to share my thoughts on that issue. As with all legislation, there is a statement on the face of the Bill that its provisions are compatible with the European convention on human rights. A wide consultation process, which we sketched out on Tuesday, is gone through in setting up the associations, so that all those with a legal interest are represented. That enables their interests to be heard in the association. We expect that any restriction onrights will be underpinned by an agri-environment agreement, which will compensate commoners for their loss. That is also relevant to ensuring that those rights are properly respected and that decisions are for the greater benefit of members. I hope that my response assists the hon. Gentleman, and that the clause will stand part of the Bill.

Question put and agreed to.

Clause 32 ordered to stand part of the Bill.

Clauses 33 to 35 ordered to stand part of the Bill.

Clause36

Consequentialprovision

David Drew: I beg to move amendment No. 77, inpage 20,line 20, after ‘authority',insert
‘after public advertisementand consideration of anyrepresentations'.

Michael Weir: With this it will be convenient to discussamendment
No. 76, inclause 36, page 20, line 30, leave out paragraphs (c) and(d).

David Drew: Again, these are probing amendments. I wish toclarify the situation with regard to pre-existing schemes ofmanagement, where the Government, for whatever reason, have chosen totake action against a commons association, presumably because ofsomething it should have done or something it should not havedone.
My amendmentNo. 77 seeks to ensure that the public have a right to appeal againstany action that would damage a pre-existing scheme of management oncommon land. That is a fall-back position in terms of possible actionthat could be taken against a commons association or committee, oragainst the Government, should they choose to take action because they were unhappyabout how a particular association or committee was carrying out itsduties.
The twoprobing amendments sit together, and I want to hear theMinister’s comments on them. We should ensure that there is apublic interest in terms of the protection of pre-existing agreements,which could be changed by the nature of this legislation. We shouldalso be clear about what happens in a dispute over a pre-existingagreement and a subsequent agreement, and what the Government’srelationship would be in respect of such adispute.

Jim Knight: I am grateful to my hon. Friend for allowing me toclarify matters that might have been missed. As ever, some of them arecomplicated.
AmendmentNo. 77 is unnecessary, because clause 27 already requires the nationalauthority to do what it would require. Any change or revocation ofexisting legislation affecting commons management—such as ascheme of management established under the Commons Act 1899—willbe included in the establishment order for a new commons association.In making an establishment order, the national authority is required toconsult and consider representations on the draft order. That willinclude some form of advertising of the draft order to raise awarenessamong local and other interests in the proposed order. There is alsothe scope to hold a local inquiry, if necessary. I hope that satisfiesmy hon. Friend in respect of amendment No.77.
Amendment No. 76would prevent the national authority from modifying any scheme ofmanagement established under the 1899 Act or the CommonsAct1876, where it might come into conflict with the functions given to acommons association. We expect the majority of commons associations tobe formed on agriculturally active upland commons. Therearerarely schemes of management establishedunder19th century legislation on these commons, but it issensible to have a power that can be used to resolve any conflictbetween functions that may be given to a commons association and anyscheme that does exist. For example, there are a handful ofagriculturally active commons that are subject to orders of regulationmade under the 1876 Act. While we have no reason to believe that boardsof conservators established under such orders are not workingeffectively, clause 36 is in place should the interests in the commondecide that they want to “upgrade” to more modernpowers.
In any event,in cases where a scheme of management might be varied or revoked thereis a saving for-public-access arrangement; my hon. Friend isparticularly concerned about that. Any form of public accessestablished under a scheme of management is protected by clause 36(3).That prevents the national authority from abolishing or restricting anyform of public access when using this power.
Further protection of thepublic interest is provided through the requirement in clause 27 forsubstantial support for each order that establishes a commonsassociation. The variation or revocation of any scheme of managementunder these 19th century Acts would be included within an individualestablishment order and is subject to the same test of substantial support. I hope thatsatisfies my hon.Friend.

David Drew: I am more than satisfied, but I wish to add onequalification. Will the Government spell out exactly how the publicinquiry apparatus would come into play? As long as that request hasbeen heard, I beg to ask leave to withdraw theamendment.

Amendment,by leave,withdrawn.

James Paice: I beg to move amendment No. 67, in clause 36, page20, line 41, at endadd—
‘(4) Section 36(2)(e)shall not be taken to apply to the National Trust Acts1907-1971'.

Michael Weir: With this it will be convenient to discussamendment No. 68, in clause 44, page 25,line 30, at endadd—
‘(6) Section 44(2)shall not be taken to apply to the National Trust Acts1907-1971'.

James Paice: These amendments are self-explanatory, and it willnot come as a surprise to learn that they have originated from theNational Trust, to which I referred in my speech on SecondReading.
The NationalTrust is renowned; everybody knows about it. Its property encompasses alarge amount of common land—about 10 per cent. of the totalcommon land in England and Wales. We are all very aware of the benefitsof the National Trust, through its work in conservation, access,recreation and so on, and many commons were entrusted to it because ofits duties and powers as laid down in the National Trust Acts. It isthe only organisation covered by those specific Acts, which range from1907 to 1971. The NT has a great worry that the provisions under clause36, as well as those under clause 44, could enable the nationalauthority—the Minister in England’s case, or the WelshAssembly—effectively to negate or abolish part or all of one ofthose Acts. I share the NT’s concerns in that regard.
The NT has many powers andduties that are similar to those of local and national parkauthorities, such as those given by the Open Spaces Act 1906. However,that Act is exempt from clause 36 but the National Trust Acts arenot.
Elsewhere in theBill, other Acts, organisations and places such as Epping Forest andthe New Forest are excluded from parts of the Bill because arrangementsare already in place for effective commons management. National Trustproperties should also be exempted. In the other place, Lord Bach gaveassurances that in practice those powers are unlikely to be used, butthe risk remains and I do not understand why the amendment cannot beaccepted so that the Bill states clearly that the National Trust cannotbe affected by ministerial order under clauses 36 and44.
As we often say inCommittee, that is not a reflection on the present Government, but wedo not know what may happen in future. As the hon. Member for Breconand Radnorshire said several times during our proceedings, the subjectof the Bill is unlikely to come back to the House for many years, so itis vital to get the provisions right now. If anyone can tell me theshape, complexion and nature of the Government in 50 or 60 years, they have a better crystal ball than I have. None of uscan foresee how a future Minister might use the powers in the Bill andit is important to make the matter clearnow.
The NationalTrust has given an example of where there might be conflict. Heatherburning might conflict with the trust’s management objectives ofconserving habitat, restoring soil and so on, but under the clause theMinister could order the National Trust Acts to be amended so that thetrust could not manage vegetation without the statutory commonsassociation’s consent. The National Trust would not be able tocarry out conservation management if the statutory commons associationdecided that it would not facilitateagriculture.
TheNational Trust Acts are unique and it is right that they should remainso, which is why I was happy to table these amendment on behalf of theNationalTrust.

David Drew: I shall be brief. Will the Minister say somethingabout disputes that might occur between a commons association orcommittee and the National Trust? That is not entirely outwith myexperience inmy constituency where the National Trust has,understandably, acquired land on the now renowned Minchinhampton commonwhich has not had clear ownership. That has led to a dispute withpeople living on and around the common. It is possible that ifrepresentation were made by the commons association or committee andincluded representatives of householders in the local community itwould be in dispute with the National Trust. This is a hideouslycomplicated legal minefield involving my usual friends, easements, andit is more than that because it is an ownership dispute.
Part of the problem withcommons is that when there is no clear owner the nature of the modernworld is to try to find one. When the National Trust is the mainmanager, if not the owner of the whole common, the obvious owner whoshould be allowed to acquire that right is the trust, but that can leadto conflict. Will the Minister explain how such conflict could beresolved without going through the courts? Sadly, the latter couldhappen in my area. Such an explanation might ease my concerns andclarify the situation.

Daniel Rogerson: I welcome you to the Chair for our proceedings,Mr. Weir. I support the thinking behind the amendment. In myconstituency of North Cornwall, the National Trust manages significantareas of land, particularly along the coastline. Given the existingsystems of management and well established relationships withorganisations in the community, which are recognised and have operatedwell for a number of years, it would seem odd if a commons council,association or whatever it may be called, were to vary the managementsystems for part of an area of common land that cuts across land thatis owned—land which might sit in the middle of an area of landmanaged by the National Trust. I hope that we preserve the schemes thatare already in place and allow them tocontinue.

Jim Knight: I am grateful for the amendments because theypresent another opportunity to explain our position on something thathas occupied those in the other place. I am meeting the chief executiveof the National Trust shortly, and I am sure that it will be a subjectfor conversation on that occasion as well.
Any provision made under clause36 would be made through an establishment order, which establishes acommons association. An order cannot be made unless there issubstantial support for it, having regard to the views of key interestsin the common. That would include the National Trust in its capacity asowner or as the body with statutory functions relating to themanagement of the land. If the trust had significant objections, theSecretary of State would be most unlikely to make an order, so in thatrespect the interests of the trust areprotected.

Daniel Rogerson: Will the Minister giveway?

Jim Knight: There is plenty of argument still to come, but Iam always delighted to giveway.

Daniel Rogerson: I am grateful to the Minister for giving way. Iunderstand that the National Trust, as a significant landowner, wouldhave a role to play in the setting up of such a body. However, once inoperation, if relationships were to change slightly, issues might ariseand there could be disagreements further down theline.

Jim Knight: Yes, there may be disagreements further down theline, but we must consider whether we make an exception for theNational Trust, as opposed to any other legal interest in the common. Iwould argue that it is difficult for us to do so.
My hon. Friend the Member forStroud asked about disputes between a trust and an association. Mostdepend on the nature of the dispute and it probably would not be amatter on which the association has any jurisdiction. I regret that itwould normally be a matter for the courts, but I hope that theformation of associations—happening with the NationalTrust’s consent—would bring the interests in the commoncloser together, generating a better understanding, meaning that thosedisputes would be less likely to arise.
The difficulty is that in thediscussions we have had here, in the other place and at official level,no one has yet specified what in the National Trust Acts might beamended under the powers in clause 36, or why. The purpose of a commonsassociation established under part 2 in relation to National Trustcommon land would be to promote the better management of the common.What purpose could we have in seeking to diminish any protectionafforded to that land by the National Trust Acts? There seems to be anunderlying perception that commons associations would be an unwarrantedinterference with the National Trust management of common land and thatthey are not needed. That cannot be right. Until recently, fewerNational Trust commons were achieving the public service agreementtarget than commons nationally, and the establishment of associationson such commons can only assist rather than hinder the achievement oftarget conditions.
It is highly unlikely that wewould wish to useclause 36 to make amendments to the NationalTrust Acts. There is even less need in relation to clause 44, becauseschedule 4(3) does the job already. We could introduce an amendmentthat in effect “Nothing in this clause shall apply to theNational Trust Acts 1907 to 1971.” We could equally say,“Nothing in this clause shall apply to the Greenham and CrookhamCommons Act 2002.” We could exclude the clause’soperation from any of 10,000 local and private Acts that have beenpassed since the end of the 18th century, and any of whose promoters fear that clause 36 could be used to interfere with their own legislation.
Should we exclude from thescope of the clause the Malvern Hills Acts or the DartmoorCommonsAct 1985? Why draw the line at making specialprovision for only the National Trust? It owns large swathes of myconstituency, and it is a great and special organisation; but can wejustify the precedent of an exception?
Public, general Acts ofParliament contain numerous provisions similar to those in clause 36.They are required because of the vast number—10,000 orso—of local and private Acts, and the impossibility of knowingwhat is in them. The powers will be exercised seldom, carefully andafter proper consultation with the trust and others, and they shall besubject to parliamentary oversight. It is true that several Acts ofParliament contain savings for the benefit of the National Trust, butthose savings are concerned essentially with the inalienable status oftrust land, and that status has never been under question in theBill.
The hon. Memberfor South-East Cambridgeshire referred to the New Forest and othersexcluded from the operation of the Bill, and asked, so why not theNational Trust? The New Forest is not exempt from the scope of the Billas a whole; part 3, for example, applies to it. It is exempt from part1, because its own registration system preceded the 1965 Act. In thatregard, it is appropriate to make that exemption.
I hope that that helps theCommittee and persuades the hon. Gentleman to withdraw hisamendment.

James Paice: The Minister’s response has been robust, and that is no criticism. I was surprised when he said that nobody had produced any ideas or suggestions about where the situation might arise, because that was the purpose of my example, which the National Trust provided. A future Minister might want to confer a function enabling a statutory association to manage vegetation for agricultural purposes, and we would then encounter a conflict about the issue of heather management.

Jim Knight: Perhaps I should have specifically addressed that issue. We believe that the National Trust has no more or less power to manage the vegetationon a common than any other common owner. Notwithstanding the National Trust Acts, clause 36 could not therefore affect the position.

James Paice: To save time, the Minister said earlier that he will shortly meet the chief executive of the National Trust. The amendments were tabled at the trust’s request in order to air the issue, and it believes that the amendment ought to be made. However, I shall not press it. I do not know when that meeting is likely to take place. If the Minister can ensure that it takes place before Report, we will have the feedback. If he can allay the chief executive’s concerns, all will be well. Otherwise, we might want to return to the issue on Report. The Minister is nodding in agreement to that approach, and on that basis I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 36 ordered to stand part of the Bill.

Clause 37

Variation and revocation of establishment orders

Question proposed, That the clause stand part of the Bill.

Roger Williams: I rise to make the same point that I made on clause 26, which concerns the establishment of a statutory commons association. The point I made then was about who has the power to initiate or make such an application. I believe that the Minister replied not to that point, but to a point that he wanted to make. The issue is about who can make an application for variation or revocation of establishment orders, because somebody could make a malicious or vexatious application to the Department for Environment, Food and Rural Affairs, to Natural England or to the National Assembly for Wales. Unless there is a limit on people who canmake applications, then commons associations and commoners could have a huge amount of work imposed on them, as could the Minister’s own Department, so the Bill should say who can apply for establishment orders and who can apply for revocation.

Jim Knight: As I have sought to articulate at all stages of the Committee, we see establishment as a bottom-up process. On variation and revocation, the powers set out in clause 37 allow the national authority effectively to wind up a commons association in three situations. We do not want to set out a formal procedure; we expect Natural England, or the Countryside Council for Wales, to draw matters to our attention—as the champions for commons—when they think that there are problems, but we do not want to give them formal statutory powers. If they think that there are considerable problems in the way that an association is fulfilling its duties or exercising its powers as set out in the Bill, we would expect them to inform the relevant national authority, and if that authority decided that it needed to take action, it would be able to do so under the clause. We need to retain the flexibility that we have currently, however.

Question put and agreed to.

Clause 37 ordered to stand part of the Bill.

Clause 38

Prohibition on works without consent

James Paice: I beg to move amendment No. 54, inpage 21, line 27, after ‘of', insert ‘materially'.

Michael Weir: With this it will be convenient to discuss the following amendments:
No. 55, in clause 38, page 21, line 31, after ‘of', insert ‘permanent'.
No. 56, in clause 38, page 21, line 33, at end insert—
‘(d) the parking of vehicles used as accommodation.'.

James Paice: We now move on to part 3 of the Bill, on protection of commons, which is a very important aspect of the legislation. Clause 38 is about prohibition of works without consent, but it is clear from subsection (1) that the relevant consent is that of the appropriate national authority, which effectively means the Minister, and I think that most people would say that a sense of proportion is needed regarding which issues should go to the ultimate decision-making point of a Whitehall Minister, when both the common and the issue concerned might be very small.
Amendments Nos. 54 and 55 therefore seek to introduce a de minimis position and a sense of proportionality on some aspects, as do certain later amendments that could equally have been grouped with these, and to which I shall refer later.
Amendment No. 54 would simply insert the word “materially” into the sentence that defines restricted works—works which require consent—as
“works have the effect of preventing or impeding access to or over any land to which this section applies.”
The Country Landowners Association has suggested inserting the word “materially” before the word “preventing,” to prevent vexatious litigation and delay through someone saying that a minor work has impeded access, when the work may be an urgentand sensible piece of commons management. The regulatory and, dare I say it, bureaucratic process of seeking Government consent will be considerable, and the amendment deals with that.
Amendment No. 55 was touched upon on Second Reading. It refers to fencing. Obviously nobody wants to fence off a common permanently. It is reasonable that permanent fencing should require consent, because it seriously undermines many of the attributes of much, although by no means all, common land.For example, there are fenced commons in my constituency. However, there is a distinction between that sort of permanency and the temporary arrangements using electric fencing, for example, which may be necessary to keep stock off roads.
We discussed on Second Reading how much road traffic has increased and developed since commons were invented. Not too many sheep were run over by horses and carts, but they are more likely to be run over by a Harley-Davidson roaring across the common, as I have seen in my constituency. Sometimes, there is logic in requiring an electric fence to prevent stock from straying on to roads. However, the converse is using electric fencing to prevent stock from straying into areas of a common that, for conservation purposes, it may be right to exclude them from. Such fences may be used to keep stock off private property, which is a matter of common sense, although arguably it is the private landowner’s responsibility to fence stock out. Lots of gardens and drives open on to common land. However, it may be simpler to erect an electric fence, rather that facethe major issue of constructing permanent fencingon private land. The amendment would insert proportionality into the Bill so that the Minister and his officials are not besieged by requests for miniscule works.
Amendment No. 56 is slightly different; I touched on its subject on Second Reading. It would insert in subsection (3) reference to the works that need consent, especially
“the parking of vehicles used as accommodation.”
I am aiming this measure at Travellers. In my constituency, we have the serious problem, which is not unique, of Travellers parking on common land and often leaving a dreadful mess behind, if they ever leave. It is difficult to remove them.
The amendment would not change the law on the illegality of parking on common land—I am not suggesting that it does—but by including a provision requiring people to get consent from the national authority in charge of commons before parking a caravan on common land, it adds emphasis to the perception that what they are doing is illegal. It takes the matter beyond planning consent and the powersjof the local authority—the planning authority—to national consent through the Government.
The amendments are straightforward and designed to improve the basis on which the prohibition applies. I should be grateful if the Minister agreed to them.

David Drew: I concur with the hon. Gentleman on the last thing he said about amendment No. 56, which makes a lot of sense. However, I am concerned about amendments Nos. 54 and 55. If things are only referred to as permanent—through the Secretary of State or his representative—it prompts the question of whether anything temporary will be allowed to exist for a significant period. All hon. Members can provide instances of something that was agreed to on a pro tem basis, but became effectively permanent because action was never taken.
I urge the Minister to clarify what is meant by the words “temporary” and “permanent”, if that is possible. Also, I urge him to withstand the honeyed words of the hon. Member for South-East Cambridgeshire, as there are some dangers in laying down something that would make it difficult to intervene when clearly there has been a problem.

James Paice: I understand the hon. Gentleman’s concern. Obviously, it would be unacceptable if a temporary fence—an electric fence, for example—became permanent because it was left in place for umpteen years. He is right about that, but I contend that the Bill as drafted allows for that. I am tryingto insert the word “permanent” in subsection (3), which lists particular examples of restricted works. Subsection (1) states that restricted works may not be carried out without consent. I would argue that the structure of subsections (1), (2) and (3) means that if something is considered permanent because it has been there for some time, representations could be made to the Minister to say that it is not temporary but outside the exemption created by my use of the word “permanent”, and the legality of that fence could be challenged at any stage if it appeared to be permanent but did not have consent.

David Drew: That is why we need the Minister to arbitrate on exactly what the terms mean. I understand what the hon. Gentleman is trying to do, but there are dangers that one could diminish the power to take action because of a lack of clarity about the grounds for referring cases to the Secretary of State. I hope that the Minister will put my fears to rest, and I urge him to stand firm on the clause as drafted.

Elfyn Llwyd: I support the amendments simply because we are creating a new body of law thatis practical. The hon. Member for South-East Cambridgeshire referred to instances when temporary fencing is needed. For example, in conserving biodiversity, grouse moors and so on, there are times when under-grazing is a problem but also times when over-grazing is a problem. It is not reasonable to expect somebody to apply for permission each season. All the expense and trouble will put people off getting involved in management procedures if they need to take that route each and every time.
Some examples have been given of why one might need temporary fencing. I shall offer one or two others. As a consequence of the foot and mouth debacle, many thousands of hefted sheep have been lost from the uplands. Hefting of sheep is not easy—it does not happen overnight—and commoners have to put up fencing to re-heft sheep, if that is the right term. If commons are to work, they need hefted sheep, but it is obvious sheep cannot be re-hefted on most commons without fencing. Those of us who live near common land see that day in, day out. It is a necessary consequence of looking after living commons, which I hope we will achieve by virtue of this Bill.
The point of the exercise is to ensure that the procedure is simplified. I do not in any way want people wrongly to fence off commons permanently—that is not right, and none of us wants it. If somebody wants to install a permanent fence for special reasons, he or she must apply for full permission. That I fully understand, but this is an entirely different kettle of fish.
I mentioned nature conservation. There are times when common land is improved, or even when parts of it are reseeded, and that is all to the good. One needs to fence in areas during reseeding. I am sure that there are many other examples.

David Drew: But surely those are just the cases on which a commons association or a commons committee would get consensus or agreement and therefore there would not be any difficulty. We are talking about cases where there clearly is a dispute.

Elfyn Llwyd: No, there is not.

David Drew: Well, it could well be that these are particular cases where disagreement arises, which is why, as a failsafe, we can go to the Secretary of State.

Elfyn Llwyd: I am not terribly keen on pushing cases through to the Secretary of State and the National Assembly for Wales. They have enough to do already. According to what I have just heard, some people might not take the cases there, but that is a fresh political point.
I am talking about prohibition on works without consent. It is an absolute prohibition. I agree with what others have said eloquently, which is that we need flexibility to allow temporary measures to be taken. That is all the clause is about, and no more and no less. It is not a back-door means of evading the Act. However, the hon. Gentleman’s reading of the clause is slightly erroneous. It is not do with disputes as such, but with restricted and prohibited work.
I fully agree about the parking of vehicles to be used as accommodation. We all know examples of that. I have no axe to grind with the Traveller community. Part of the problem is that local authorities do not provide sites for them, and that happens throughout England and Wales.

Daniel Rogerson: During the debate on the parking of vehicles foraccommodation purposes, I was struck by something that seems to behappening more in Cornwall. I refer to the parking of vehicles that areused effectively for signage in that signs are painted on the sides ofvehicles presumably to get round planning regulations. Does the hon.Gentleman think that it would be helpful for the Minister to come backon thatissue?

Elfyn Llwyd: It is right and proper to raise the matter in thedebate, but I believe that that is more to do with planning law.However, no doubt the Minister will address the issue when he sums upthe debate. It was a good point.
It has also been put to methat, under clause 38(3)(c), there should be an ability, albeitlimited, for ditches and wooden posts to be erected on the perimetersof commons and village greens to prevent 4x4 vehicles from beingunlawfully driven across land and to stop joyriders and so on. Thatwould also deter wholesale fly-tipping. I do not know theMinister’s view, but we all know that it is a major problem. Itis a major problem in parts of south Wales, as it is inmanyareas. It destructs grazing land, the natural environment and itaffects biodiversity. What would the hon. Gentleman do to prevent 4x4vehicles from encroaching where they should not? No one wants thepublic’s access to be impeded, but it is a point that might wellbe considered.
Ishould like the Minister’s view on another representation that Ireceived. If he cannot respond to it today, perhaps he will drop me aline. For the first time, the provisions would prevent mineral workingfrom taking place on common land without the consent of the Secretaryof State or the National Assembly for Wales. I have been advised thatthat might be undesirable for two reasons. First, it is an additionallayer of regulation in that planning permission is still requiredbefore such activities are carried out. The planning regime is moreappropriate for such consideration. Secondly, the test would have to bewidened to take into account conservation, public interest and public access issues before such consent can begiven, and that may be inappropriate under the Bill. I should begrateful if he could comment in duecourse.
The amendmentsare sensible, because they introduce an element of proportionality.That is important, because we want a regime that is regulated, butnevertheless practical, and that allows for commons to be living and tobe maintained for the commongood.

David Maclean: I rise to support the amendments tabled by myhon. Friend the Member for South-East Cambridgeshire, and to give mystrong support to the comments made by the hon. Member for MeirionnyddNant Conwy on the need for occasional temporary fencing to deal withpractical farming problems on commons. There is no philosophical orpolitical divide on this issue, and the hon. Member for Stroud has gotthings slightly wrong—one would not want to go to the Ministerto settle disputes. What we are talking with regard to reseeding is asituation in which all the commoners agree to reseed a few acres ofland and that they should have a temporary fence, such as an electricfence, in place for a few months until the grass seedtakes.
If commonershave to go to the Minister on every occasion that they want a fewhundred yards of electric fence for a few months until the grass seedtakes, he will be very busy. I come across such cases all the time.There are hundreds of miles of stone walls in Cumbria that run overcommons, and most of them are fairly clapped-out; indeed many of themfall down. At the moment, farmers who go out in the morning to checktheir lambs may see that a few yards of stone wall have fallen down andthat sheep are pouring through. They are not going to bring in theEnglish dry stone walling champion Steve Allen from Tebay, who charges£13 a yard; they will fix it themselves over the following fewweeks. Every time they go out to feed the sheep in the morning, they doa little bit of stone walling and, in the meantime, they stick up fiveyards of fencing round the gap in the wall to stop the sheep and lambsgoing through.
Isuspect that that is happening at this precise moment in Cumbria, andit happens every day of the week. If a bit of temporary fencing to pluga gap in the stone walls has to be the subject of an application to theMinister, he will get 20 applications a week from Cumbria alone. Thatis not what will happen, however. Instead, the requirement will just beignored, and I do not think we should have a law on the statute bookthat is ignored because it is practically impossible tooperate.
I am not surethat the term “permanent,” as usedby my hon.Friend the Member for South-East Cambridgeshire, is the right, or thebest, word. However, that part of the Bill that deals with the erectionof fencing is unworkable in practical farming terms. We shall have toexamine it again and consider either having definitions of the words“permanent” or “temporary” that are not asthreatening as the hon. Member for Stroud believes, or making thedefinition of fencing erection a bit more wordy so as to explain that temporary, short-gap fencing to deal with holes in stone walls, orfor reseeding, ispermitted.
There arenumerous other examples of temporary fencing. On the Pennine fells,there were 2,000 lead mines, meaning that there were 2,000 verticalholes in the ground where people dug down 50 to 60 ft until they hitthe lead, and then tunnelled along a bit. Nearly all those holes arecapped now, so that not too many people fall down them. However, theodd sheep disappears. When farmers go out on the fells and they find adeep hole like that or a wet boggy bit that sheep go into and never getout of, they are not interested in erecting miles of fencing. They wantto put up five or six yards of fence around the wet boggy hole untilthe farmer can do something about it. If we have to go to the Ministerabout a bit of fencing round a wet hole in the ground or a crevice thathas materialised, he will be verybusy.
I do not havethe solution, and I am not sure that my hon. Friend’s word isexactly the right one to deal with the problem without driving a coachand horses through the law—the concern of the hon. Member forStroud—but the point will have to bereaddressed.

Jim Knight: The amendments are the first that the Committeehas considered on part 3 of the Bill. Before I comment on them indetail, and with your indulgence, Mr. Weir, it may be helpful if I givesome background explanation of the works control system that is thetheme of most of this part of theBill.
The regime datesfrom the fundamental reform of property law undertaken in the early1920s and culminating in the Law of Property Act 1925. Strong concernwas expressed at the time that, as a result, commons would becomeclosed to both commoners and the public and would turn by default intoordinary private land. The result of that fear was sections 193 and 194of the 1925 Act. Section 193 introduced a public right of access forair and exercise to commons in urban districts and boroughs.
The original plan was to makeall commons subject to those access rights, but that plan metopposition in the other place, so a compromise was reached that ruralcommons were not to be subject to express rights of access under thelegislation. Instead, section 194 provided that, on all commons,fencing or works that would prevent or impede anyone’s accesswere unlawful without the prior consent of the Secretary of State.Section 194 has made such provision ever since, with the result that,by and large, a wonderful national resource remains largely open,unspoiled and suitable for the exercise of common rights and publicenjoyment, and as a fantastic pool of landscape, wildlife and heritagefeatures that I know all Committee members seek to celebrate and allowto continue.
Theregime in part 3 is substantially the same as the one in section 194,which it will replace. However, it updates the controls in certainspecific ways to make them clearer and more consistent, particularly onwhat types of land are covered by the regime and what types of worksare exempt. For example, the present controls apply only to land subject to rights of common in 1926. As time goes on,that becomes more and more difficult to establish with any certainty.The Bill will create a clear link between works controls and landregistered as common or, in some cases, exempted from such registrationin the 1960s.
Finally,the Bill will ensure, as far as possible, that when the nationalauthority’s consent is required for works on commons, a uniformset of criteria will guide their determination. That is not thesituation at present. I hope that those remarks are helpful in settingthe scene for part 3, which had proportionally less scrutiny in theother place than the other partsdid.
I am afraid thatour view of amendment No. 54 has not changed from the view that we tookin the other place. Adding the word “materially” wouldsimply make the provision more difficult to interpret. There would beall manner of debate about what “materially” meant and towhom. Different landowners, enforcing authorities and members of thepublic would take different views on the subject.
It is unlikely that trivial orinsignificant works on commons would be regarded as contraventions ofclause 38 as it is now worded any more than they are under identicalwording about preventing or impeding access in section 194 of the 1925Act, which has stood the test of time for more than 80 years. It iseven less likely that a county court would make an order against suchtrivial or insignificant works in the event that it was asked to doso.

Elfyn Llwyd: What the Minister says is right—the countycourt will not make an order in a de minimis situation—but somemember of the public will undoubtedly take it upon him or herself toinitiate the proceedings, causing delay, cost and everything else to nopoint. That underlines the need for theamendment.

Jim Knight: I listened to the hon. Gentleman with care, as Ialways listen to the hon. Member for South-East Cambridgeshire—Iwould not want him to feel left out—but I return to the problemof defining “materially”. The Bill includes a mechanisminclause 43 to exempt certain works from clause 38 and takethem en masse, but I shall come to that in a moment. I encourage thehon. Member for South-East Cambridgeshire to withdraw amendment No.54
Amendment No. 55would also create definitional problems. In the end, no fence ispermanent. While supporting the amendment, the right hon. Member forPenrith and The Border made this point to some extent: all fences falldown in the end and need to be replaced. The amendment’sformulation might result in the outcome that no fence at all requiredconsent.The hon. Member for South-East Cambridgeshirementioned electric fencing, which might appear to be more temporarythan other forms of fencing but which can be just as much of animpediment to access as permanent fencing.

It being twenty-five minutespast Ten o’clock, The Chairmanadjourned the Committee without Question put, pursuant to theStandingOrder.

Adjournedtill this day at Oneo’clock.